No Manifest Necessity Without a Real Rule:
The Seventh Circuit Clarifies §2241 Double-Jeopardy Relief in Mitchell Green v. Milwaukee County Circuit Court (2025)

1. Introduction

This commentary analyses the United States Court of Appeals for the Seventh Circuit’s decision in Mitchell D. Green v. Milwaukee County Circuit Court, No. 24-2980, decided 1 August 2025. The case arises from a mistrial in a Wisconsin state prosecution for child-trafficking. Mr Green sought pre-trial federal habeas corpus relief under 28 U.S.C. §2241, asserting that a retrial would violate the Double Jeopardy Clause. The Seventh Circuit, in an opinion by Judge Easterbrook, reversed the district court and ordered an unconditional writ barring retrial.

The appeal presented four key questions:

Whether a defendant released on bond before conviction is “in custody” for purposes of §2241.
Whether Younger v. Harris abstention applies to a §2241 double-jeopardy petition after state exhaustion.
What constitutes “manifest necessity” for declaring a mistrial over the defendant’s objection.
Whether Wisconsin law imposed any pre-trial notice requirement for so-called “Denny witnesses.”

2. Summary of the Judgment

The Seventh Circuit held:

Green, although on a $1,500 bond and not yet convicted, is “in custody” under §2241(c)(3).
Younger abstention does not bar §2241 habeas review of double-jeopardy claims where the petitioner has exhausted state remedies.
The Wisconsin trial court’s mistrial lacked “manifest necessity” because it relied on a non-existent legal requirement—pre-trial notice for Denny evidence. An error of law cannot supply the discretion needed under Arizona v. Washington.
Consequently, retrying Green would violate the Double Jeopardy Clause; an unconditional writ must issue preventing retrial.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Ex parte Royall (1886) – Identifies double-jeopardy claims as a “special circumstance” warranting pre-trial habeas review.
Justices of Boston Municipal Court v. Lydon (1984); Hensley v. Municipal Court (1973) – Establish that release on bond or recognizance satisfies the “in custody” requirement. The Seventh Circuit extends this reasoning to an untried defendant on bond.
Younger v. Harris (1971) – Provides the modern abstention framework. The Court distinguishes §2241 habeas from the type of civil injunction at issue in Younger.
Arizona v. Washington (1978); Illinois v. Somerville (1973) – Define “manifest necessity” and require “sound discretion” plus exploration of alternatives before granting a mistrial.
State v. Denny (1984) and progeny – Supply Wisconsin’s standard for third-party perpetrator evidence but, crucially, contain no notice requirement.
Bakov v. Consolidated World Travel (2023); United States v. Mietus (2001) – Stand for the principle that discretion premised on a legal mistake is an abuse of discretion.

3.2 Court’s Legal Reasoning

Jurisdiction & “Custody.” Leveraging Lydon, the panel found Green sufficiently restrained to satisfy §2241(c)(3). Physical incarceration is unnecessary when bond conditions limit “unconditional freedom.”
Abstention. Habeas petitions are categorically distinct from §1983 suits that implicate Younger. Because Green already presented his double-jeopardy claim to Wisconsin’s highest court, federal intervention serves, rather than frustrates, comity and finality interests.
Manifest Necessity Analysis. The trial judge believed Denny evidence demanded pre-trial disclosure, a premise unsupported by statute, rule, or caselaw. Discretion based on such a legal error cannot be “sound.” The Seventh Circuit emphasised alternative remedies—continuance, curative instruction, in-trial admissibility hearing—none of which were seriously considered. Without an actual legal obligation or prejudicial surprise, ending the trial was unnecessary.
Standard of Review. Section 2241 lacks the deferential lens of §2254(d); federal courts apply ordinary habeas principles. Hence the state supreme court’s reasonableness finding did not insulate the mistrial from federal scrutiny.

3.3 Anticipated Impact

Pre-Trial Habeas Strategy. Defendants facing a second trial after a contested mistrial now have a clearer Seventh-Circuit roadmap for §2241 relief.
Trial-Court Practice in Wisconsin. State judges must articulate an actual legal basis and explore alternatives before declaring mistrials. Absent a formal notice rule, failure to disclose a third-party perpetrator theory will seldom justify a mistrial.
National Dialogue on Abstention. Other circuits may revisit the scope of Younger where habeas petitioners complain of double jeopardy after full state exhaustion.
Discovery & Motion Practice. Prosecutors cannot rely on assumed or informal notice regimes. They must procure discovery orders or rulings in limine to secure advance disclosure of defense witnesses who may provide “alternative-perpetrator” testimony.

4. Complex Concepts Simplified

§2241 vs. §2254. Both statutes authorize federal habeas, but §2241 applies to custody before conviction or where no state conviction is challenged; §2254 applies to state convictions and sentences.
“In Custody.” This term extends beyond jail to any significant restraint—bond conditions, electronic monitoring, travel restrictions—that curtail a person’s absolute liberty.
“Denny Witness.” Derived from State v. Denny, a witness who implicates a third-party (often himself) as the actual perpetrator, aiming to create reasonable doubt about the defendant’s guilt.
Manifest Necessity. A high constitutional threshold demanding that a mistrial be the only fair solution. Judges must weigh the defendant’s interest in keeping the current jury against the need to cure fundamental trial problems.
Younger Abstention. A prudential doctrine instructing federal courts to avoid interfering with ongoing state prosecutions through civil suits—distinct from habeas corpus, which Congress specifically authorized to review custodial restraints.

5. Conclusion

The Seventh Circuit’s decision in Mitchell Green crystallises two important doctrinal points: (1) pre-trial defendants on bond satisfy the “in custody” requirement for §2241 petitions, and (2) “manifest necessity” cannot rest on legal error or an assumed procedural obligation. The ruling underscores the constitutional premium placed on the finality of a chosen jury and fortifies federal oversight when states misapply double-jeopardy standards. Wisconsin trial courts—and likely those in other jurisdictions—must now ensure that mistrials grounded in the surprise of defense evidence are supported by an authentic, pre-existing rule and that lesser alternatives have been earnestly explored.

Ultimately, Green serves as a cautionary tale: judicial assumptions unmoored from statute, rule, or caselaw can convert procedural convenience into constitutional violation. By awarding an unconditional writ, the Seventh Circuit reaffirms that the Double Jeopardy Clause remains a powerful bulwark against government overreach, even before the first verdict is delivered.

No Manifest Necessity Without a Real Rule: The Seventh Circuit Clarifies §2241 Double-Jeopardy Relief in Mitchell Green v. Milwaukee County Circuit Court (2025)